S R MUTHUSAMI GOUNDER Vs. T KRISHNASWAMY IYENGAR

JUDGEMENT

(1.) These are two applications taken out by the plaintiff. One is an appeal against the order of the Master refusing leave to amend the plaint and the other is for leave to sue on the basis of the plaint sought to be amended.

(2.) The suit is for specific performance of a contract for the sale of certain lands in Salem District entered into at Madras, and for an injunction restraining the second defendant from bringing about a breach of the said contract. Application No. 260 of 1951 was filed by the plaintiff for amendment of the plaint consequent on the plaintiff having been made aware sub-saquent to the suit that the second defendant claimed to be purchaser of the same property under a sale deed executed in his favour on the 28th September 1950. The plaint is, therefore, sought to be amended by stating that the sale is sham and nominal, and, in any event, the second defendant is not a 'bona fide' purchaser for value without notice, and for directing the execution of the sale deed not only by the first defendant, but also by the second defendant.

(3.) The application was opposed on the grounds that the amendment could not be allowed, as it substantially alters the cause of action, secondly, that the amendment would covert the suit into a suit for land, and this Court would not have jurisdiction to try the suit, and, thirdly, that in any event, the amendment petition was incompetent, as it was filed without previously obtaining leave of Court to sue in respect of the suit as proposed to be amended. The learned Master held in favour of the plaintiff on the first two contentions, but dismissed the application on the ground that as amendment substantially alters the cause of action, the suit having been filed after obtaining previous leave of Court under clause of the Letters Patent, no amendment could be allowed. The learned Master, however, observed that he considered the question as to whether he should grant the plaintiff an adjournment to enable him to apply for leave to sue in regard to the amendment sought but as the obtaining of the leave was a condition precedent to the presentation of the application for amendment, he considered that no purpose would be served by an adjournment.